Document Your Damages With A Diary

Brooks Schuelke

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Yesterday I posted about clients taking photos to document the incident and their injuries. We also tell our clients to document their experiences with a diary.

At the end of the day, the biggest portion of damages in most personal injury cases is pain and suffering and impairment (what activities could you do before the incident that you couldn't do after). It's critical to have details about these items when we're preparing a settlement package, when the client is testifying at a depo, or when the time for trial arrives. Often, these events are a year or more after the incident, and while the client may remember some things, what he or she remembers is often more general and doesn't tell the whole story.

One way to remedy this problem is to keep a diary of the pain the client goes through and the limitations the client endures. Then, when the critical times come, the client can remember more of these items in detail.

I also often ask clients to talk to their spouses about the things they write in their diaries because spouses have a better idea of what's going on than the client. Most people have a tendency to minimize their own injuries, but spouses see the true pain and impairment. I use myself as an example of this. I tore my anterior cruciate ligament (ACL) several years ago in a big sports accident (okay, maybe not big time sports, I initially tore the cartilage playing law school intramural flag football and then completely tore the ACL a few months later when I somehow caught an edge skiing a little green run in Monarch, CO). If you ask me about the surgery and rehab, I don't remember it being that bad. But if you ask my wife, she remembers me being in pain, fighting the Continuous Passive Motion machine, and the rehab. You'd get a much better picture of my injuries and impairment from her than from me.

I think it's critical that clients take an active role in keeping these diaries and taking photos. I haven't done any studies on this, but I've talked to several plaintiff's attorneys, and we uniformly agree that the clients that document their injuries and cases obtain much better results (whether settlement or at trial) than clients that do not.

It's also important to note on the diary that it is being prepared for the client's attorney. Preparing the diary for the attorney instead of for one's self is necessary to establish attorney-client privilege.